January 10, 2013

DOJ Defends Secrecy of Post-Mortem Osama bin Laden Photos

Updated 2:46 p.m.

A U.S. Justice Department lawyer today defended the government's refusal to publicly disclose post-mortem images of Osama bin Laden, urging a federal appeals court in Washington to keep depictions of the body of the former Al Qaeda leader out of the public realm.

The attorney, Robert Loeb of DOJ's Civil Division, argued the disclosure of the images of bin Laden, killed in a U.S. raid in Pakistan in May 2011, would jeopardize the safety of Americans—potentially exposing them to retaliatory attacks. The prediction of adverse consequences, Loeb said, is not "mere conjecture."

A federal trial judge in Washington ruled for the CIA last year when he blocked the release of 52 images under the Freedom of Information Act. The judge, James Boasberg, found the CIA's concern about the potential harm to the national security compelling enough to block the publication of the images.

The challengers, the conservative group Judicial Watch, didn't get much sympathy in the U.S. Court of Appeals for the D.C. Circuit, where judges Merrick Garland and Judith Rogers, with Senior Judge Harry Edwards, heard the case today.

Garland appeared the most skeptical about the legality of forcing the government to disclose any of the images in question. The question in front of the court, he said, is the plausibility of whether the disclosure of bin Laden death photos could incite violence.

Top CIA officials said in declarations that the release of the images would have grave consequences. "Why should we not defer to them?" Garland asked.

The judge noted how cartoon depictions of Mohammed have sparked riots. He also linked the violence in which the U.S. ambassador to Libya was killed in September to the release of a video on YouTube that mocked the Muslim prophet. The administration initially blamed the video—then backed off the contention—for playing a role in the assault on the consulate in Benghazi in which the ambassador, J. Christopher Stevens, died.

Michael Bekesha of Judicial Watch, which sued for the images shortly after bin Laden was killed, argued that the government has failed with specificity to demonstrate how the release of individual images will harm the national security. He questioned whether an image of a solemn burial service on board a U.S. aircraft carrier would have any impact on Americans.

"The government just doesn't specify the harm assessment associated with those records," Bekesha said in court.

Bekesha urged the court to make its own assessment of any potential harm from the release of images and to not be a "rubber stamp" for the government. He said the disclosure of the images "will not reveal any secret information."

Part of the challengers' complaint is that the post-mortem images were not properly classified under the procedural criteria found in a particular presidential executive order. Judicial Watch argues the government hasn't provided evidence of who made the original classification decision, and when that decision was made.

DOJ lawyers said in court papers that "when the CIA received the records, they were classified in the first instance CIA personnel acting pursuant to derivative authority under the CIA’s classification guidance manual." Very few people in the government, Loeb said, have "original" classification authority, relying instead through someone else.

Exploring that issue, Garland pressed Loeb, during one exchange, for information about the classification guide. Garland wanted to know, for instance, how generalized the guide is when it comes to covert operations abroad.

Loeb didn't venture down that path, telling Garland: "I think the guide itself is classified." Garland, however, recalled seeing the manual quoted in another case. "Obviously," the judge said, not everything in the guide is classified. "What if the guide says 'Do whatever you want?'" Garland asked.